Citation Nr: 1033744
Decision Date: 09/09/10 Archive Date: 09/21/10
DOCKET NO. 08-12 015 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Honolulu,
Hawaii
THE ISSUE
Entitlement to an increased disability rating for a skin disorder
of the feet, rated as 60 percent disabling from March 2, 2006
through July 1, 2008, and as 30 percent disabling following that
date to include whether the reduction was proper.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. E. Wilkerson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1951 to October
1953, and from March 1957 to March 1963.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.
The Board notes that the appeal stems from a July 2006 rating
decision, which granted a 60 percent rating for the Veteran's
epidermolysis bullosa of the feet. The Veteran submitted a
Notice of Disagreement with this decision, contending that the
disability warranted a higher rating. During the course of his
appeal, the RO determined that there was a clear and
unmistakeable error in the July 2006 rating decision awarding a
60 percent rating, in that there was no evidence of constant or
near-constant systemic therapy such as corticosteroids or other
immuno-supressive drugs. The rating was proposed to be decreased
in October 2007, and was decreased to 30 percent in an April 2008
rating decision. The Board has adjusted its consideration of the
Veteran's claim accordingly.
In connection with his appeal, the Veteran presented testimony at
a Board hearing before the undersigned Veterans Law Judge at the
RO in July 2010. A transcript of the hearing is associated with
the claims file.
At the hearing, the Veteran submitted additional evidence and
waived his right to have the evidence initially considered by the
RO. In addition, the Board notes that a previous copy newly
submitted evidence was already of record.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDING OF FACT
The Veteran's skin disability of the feet has been manifested by
pain and blistering and dry, scaly skin treated by topical
creams; the affected area is not more than 40 percent of the
entire body more than 40 percent of the exposed areas, and near-
constant systemic therapy with steroids or immunosuppressive
drugs has not been required. The rating action that awarded the
60 percent rating was manifestly incorrect.
CONCLUSION OF LAW
The criteria for an increased disability rating for a skin
disorder of the feet, rated as 60 percent disabling from March 2,
2006 through July 1, 2008, and as 30 percent disabling following
that date, have not been met. The grant of the 60 percent rating
was clear and unmistakable error and the reduction was proper.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, Diagnostic Code 7815
(2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified in
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2009), and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2009), provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is not
required to provide assistance to a claimant if there is no
reasonable possibility that such assistance would aid in
substantiating the claim. They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate the
claim. As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. Although the regulation previously
required VA to request that the claimant provide any evidence in
the claimant's possession that pertains to the claim, the
regulation has been amended to eliminate that requirement for
claims pending before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals for
Veterans Claims (Court) has held that the plain language of 38
U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to
the VCAA be provided "at the time" that, or "immediately
after," VA receives a complete or substantially complete
application for VA-administered benefits. Pelegrini v. Principi,
18 Vet. App. 112, 119 (2004).
In the case at hand, the record reflects that the originating
agency provided the Veteran with the notice required under the
VCAA by letters mailed in March 2006. These letter provided
appropriate notice to the Veteran regarding what information and
evidence was needed to substantiate his claim for an increased
rating to include how effective dates are established. They also
included information on how VA determines the disability rating
by use of the rating schedule, and provided examples of the types
of medical and lay evidence that the claimant may submit (or ask
the Secretary to obtain), to include treatment records, Social
Security determinations, statements from employers concerning the
impact of the disability on the Veteran's employment, and
statements from persons concerning their observations of how the
disability has affected the Veteran. They also informed the
Veteran of the assistance that VA would provide to obtain
evidence on his behalf, as well as what information and evidence
must be submitted by the Veteran.
The Board also notes that the Veteran has been afforded
appropriate VA examinations and service treatment records and
pertinent VA medical records have been obtained. Neither the
Veteran nor his representative has identified any outstanding
evidence, to include medical records, that could be obtained to
substantiate the claim. The Board is also unaware of any such
outstanding evidence.
In sum, the Board is satisfied that any procedural errors in the
RO's development and consideration of the claims were
insignificant and non prejudicial to the Veteran. Accordingly,
the Board will address the merits of the claims.
Legal Criteria
Disability evaluations are determined by the application of the
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4 (2009). The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity resulting
from diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009).
The Veteran's skin disability of the feet is currently rated
under Diagnostic Code 7815 for bullus disorders. Under this
code, a 30 percent rating is warranted if 20 to 40 percent of the
entire body or 20 to 40 percent of the exposed areas are
affected, or; systemic therapy such as corticosteroids or other
immunosuppressive drugs are required for a total duration of six
weeks or more, but not constantly, during the past twelve-month
period. A 60 percent rating is warranted where more than 40
percent of the entire body or more than 40 percent of exposed
areas are affects, or; constant or near-constant systemic therapy
such as corticosteroids or other immunosuppressive drugs are
required during the past twelve month period. 38 C.F.R. § 4.118,
Diagnostic Code 7815.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7.
Analysis
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2009) and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed all evidence of record pertaining to the history of the
Veteran's service-connected skin disorder of the feet. The Board
has found nothing in the historical record which would lead to
the conclusion that the current evidence of record is not
adequate for rating purposes. Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical histories
and findings pertaining to this disability. In this regard the
Board notes that where entitlement to compensation has already
been established and an increase in the disability is at issue,
the present level of disability is of primary concern. Francisco
v. Brown, 7 Vet. App. 55, 58 (1994).
The Veteran was originally granted service connection for
epidermolysis bullosa of both feet in a September 1963 rating
decision. The disability was assigned a 10 percent rating,
effective May 4, 1963. The RO increased the disability rating to
30 percent in a March 1977 rating decision, effective December
19, 1974. The Veteran filed the instant claim for an increased
rating in March 2006. He appealed a July 2006 rating decision
granting a 60 percent disability rating. As noted above, during
the course of his appeal, the RO determined that there was a
clear and unmistakeable error in the July 2006 rating decision
awarding a 60 percent rating. The rating was proposed to be
decreased in October 2007, and was decreased to 30 percent in an
April 2008 rating decision. This was done properly with
appropriate notice and waiting periods. The grant of the 60
percent rating was clear and unmistakable error and as such, the
reduction was proper and was properly carried out.
In response to his claim for an increased rating, the Veteran was
afforded a VA examination in March 2006. During the examination,
the Veteran reported that he medicated his skin disability of the
feet with hydrocortisone, lanacane, lamasil cream, miconasole
nitrate, and clotrimazole. He reported pain upon standing for
approximately one half-hour and walking one mile. He also
indicated that he experienced blistering of his feet after
walking for three to four days in a row, taking a week to heal,
and that his conditioned worsened during the summer months. A
physical examination revealed dry scaly skin on the bottom of
both feet. There were also dystrophic toenails on both large
toes. There were no neurological deficits, and musculoskeletal
and vascular exams did not reveal any abnormalities and were
within normal limits. A diagnosis of epidermolysis bullosa of
both feet with blistering after walking three to four days was
noted. The examiner found that this disability would impact the
Veteran's ability to do chores, get around, and exercise for his
health.
During the Veteran's July 2010 Board hearing, he testified that
his bilateral foot disability has greatly impacted his ability to
work and exercise. He described symptoms of blisters, sores, and
crusting on his feet. The Veteran also reported that he treated
his skin disability with topical creams such as lanacane and
lamasil and used a walker and a crutch.
VA outpatient treatment records also track the Veteran's symptoms
with respect to his skin disability of the feet. In February
2006, dry scaly skin on the bottom of both feet and discolored
and dystrophic toenails were noted. An impression of
onychomycosis with toenail hypertrophy and tinea pedis was noted.
The plan was to debride the Veteran's toenails and oral lanasil
was prescribed. In October 2007, slight erythema with flakey
patches was noted. In November 2007, the treating physician
recommended that the Veteran wear comfortable, well-fitting shoes
and continuously care for his blisters. It was also indicated
that the Veteran was to be instructed on proper diabetic foot
care and footwear. Pain and discomfort of the feet were noted in
September and October 2008. The treating physician at that time
determined that the pain in the Veteran's feet was most likely
from a combination of diabetes peripheral neuropathy and frozen
feet.
With respect to the period from March 2, 2006 through July 1,
2008, the Board notes that the Veteran was receiving the maximum
disability rating allowable under Diagnostic Code 7815. The
Board has found no other basis to assign a higher rating.
As for the period beginning July 1, 2008, the Board has
determined that the Veteran is not entitled to a disability
rating in excess of 30 percent for his skin disorder of the feet.
The record reflects that the Veteran's skin disability has been
treated with a variety of topical creams; however there is no
indication that the disability has necessitated constant or near-
constant systemic therapy with steroids or immunosuppressive
drugs. Moreover, the skin condition is limited to the Veteran's
feet; thus, it cannot be said that more than 40 percent of the
entire body or more than 40 percent of exposed areas are affected
by the disability.
The Board has considered the Veteran's statements with respect to
the pain and discomfort he experiences as a result of his skin
disability of the feet, as well as VA outpatient treatment
records noting that the Veteran has foot pain in part due to his
skin disability of the feet. The record reflects that the
Veteran has been assigned 60 and 30 percent ratings at various
points during the course of his appeal, which reflect the
functional impairment, including pain and discomfort experienced
by the Veteran. As explained above, the objective evidence shows
that he does not have sufficient functional impairment to warrant
higher ratings. The Board also points out that the Veteran's
foot pain and foot care has also been attributed to another
condition-diabetic peripheral neuropathy-for which the Veteran
is not service connected.
Consideration has been given to assigning a staged rating;
however, at no time during the periods in question has the
disability warranted more than the 60 and 30 percent ratings for
the periods discussed above. See Hart v. Mansfield, 21 Vet. App.
505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
The Board has also considered whether this case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). The Court has held that the threshold factor for
extra-schedular consideration is a finding on part of the RO or
the Board that the evidence presents such an exceptional
disability picture that the available schedular evaluations for
the service-connected disability at issue are inadequate.
Therefore, initially, there must be a comparison between the
level of severity and the symptomatology of the claimant's
disability with the established criteria provided in the rating
schedule for the disability. If the criteria reasonably describe
the claimant's disability level and symptomatology, then the
disability picture is contemplated by the rating schedule, the
assigned evaluation is therefore adequate, and no referral for
extra-schedular consideration is required. Thun v. Peake, 22
Vet. App. 111 (2008).
In the case at hand, the record reflects that the Veteran has not
required frequent hospitalizations for the disability and that
the manifestations of the disability are not in excess of those
contemplated by the schedular criteria. In sum, there is no
indication that the average industrial impairment from the
disability would be in excess of those contemplated by the
assigned ratings. Accordingly, the Board has determined that
referral of this case for extra-schedular consideration is not in
order.
ORDER
Entitlement to an increased disability rating for a skin disorder
of the feet, rated as 60 percent disabling from March 2, 2006
through July 1, 2008, and as 30 percent disabling following that
date, to include whether the reduction was proper, is denied.
The reduction was proper.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs